Citation Nr: 1031106
Decision Date: 08/18/10 Archive Date: 08/24/10
DOCKET NO. 07-16 203 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg,
Florida
THE ISSUES
1. Entitlement to service connection for a psychiatric disorder,
to include post-traumatic stress disorder (PTSD), bipolar
disorder, major depressive disorder, alcohol and drug abuse, and
schizoaffective disorder.
2. Entitlement to service connection for exposure to Agent
Orange.
3. Entitlement to service connection for chronic migraine
headaches.
4. Whether new and material evidence has been submitted to
reopen a previously denied claim of entitlement to service
connection for a chronic back disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Bernard T. DoMinh, Counsel
INTRODUCTION
The Veteran served on active duty from May 1966 to June 1968.
This matter comes to the Board of Veterans' Appeals (Board) on
appeal from an April 2005 rating decision by the St. Petersburg,
Florida, Regional Office (RO) of the Department of Veterans
Affairs (VA), which denied the Veteran's application to reopen a
previously denied claim of entitlement to service connection for
a chronic back disorder for failure to submit new and material
evidence, and denied his claims of entitlement to service
connection for a psychiatric disorder (to include PTSD, bipolar
disorder, major depressive disorder, alcohol and drug abuse, and
schizoaffective disorder), exposure to Agent Orange, and chronic
migraine headaches on the merits.
Please note this appeal has been advanced on the Board's docket
pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R.
§ 20.900(c) (2009).
During the course of the appeal, the Board remanded the case to
the RO in September 2009 for additional evidentiary and
procedural development. Thereafter, denial of the claims at
issue was confirmed in an April 2010 rating decision/supplemental
statement of the case. The case was returned to the Board in May
2010 and the Veteran now continues his appeal.
For the reasons that will be discussed below, the appeal is
REMANDED to the RO via the Appeals Management Center (AMC), in
Washington, D.C. VA will notify the appellant and his
representative if any further action is required on their part.
REMAND
In its September 2009 remand, the Board noted that the Veteran
had an outstanding Travel Board hearing request. According to
correspondence associated with his claims file, he had initially
requested a Travel Board hearing at the RO on his VA Form 9
Substantive Appeal, which was received by VA in April 2007. In
response to a VA hearing letter, he confirmed that he desired a
Travel Board hearing but stated at the time that he was
incarcerated but expected to be released from prison around May
2008. He therefore requested that a hearing be scheduled after
July 2008.
In November 2008, the RO sent notice of a hearing scheduled
before the Board at the RO in December 2008. This notice was
mailed to the correctional facility at which the Veteran had been
incarcerated. A review of the claims file, however, reveals
that, not only did the Veteran advise the RO of his release
around May 2008, but a new address was of record at the time that
the November 2008 hearing notice was sent. The RO had evidently
sent the hearing notice to an incorrect address and the Veteran
did not receive notice of his December 2008 hearing.
In its September 2009 remand, the Board instructed the RO should
contact the Veteran and clarify whether or not he still desired
to have a hearing before a Veterans Law Judge from the Board and
if so, to undertake the appropriate action to provide him with
the requested hearing. The Board notes that in response to this
query, the Veteran submitted correspondence dated in September
2009, which was received by VA in October 2009, in which he
affirmed that he still desired a hearing before the Board.
However, a review of the claims file shows that no further action
was thereafter undertaken to accommodate his request. The case
was returned to the Board in May 2010 and there has been no
correspondence received from the Veteran in the time since his
September 2009 hearing request that indicates that he had
withdrawn this request.
The United States Court of Appeals for Veterans Claims (Court)
has held in the case of Stegall v. West, 11 Vet. App. 268 (1998),
that a remand by the Board confers upon a veteran or other
claimant the right to VA compliance with the remand order and
imposes on the Secretary a concomitant duty to ensure compliance
with the terms of such an order. As the RO has clearly failed to
schedule the Veteran for his requested RO hearing before a
Veterans Law Judge, as
instructed by the Board, the case must therefore be remanded for
compliance with this prior remand instruction from the Board.
(Pursuant to 38 C.F.R. § 20.700 (2009), a hearing on appeal will
be granted to an appellant who requests a hearing and is willing
to appear in person. See also 38 U.S.C.A. § 7107 (West 2002)
(pertaining specifically to hearings before the Board). Since
the RO schedules travel board hearings, a remand of these matters
to the RO is warranted.)
Accordingly, the case is REMANDED to the RO via the AMC for the
following action:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009).
Expedited handling is requested.)
The RO should schedule the Veteran for his
requested travel board hearing at the
earliest available opportunity. The RO
should notify the Veteran and his
representative of the date and time of the
hearing, in accordance with 38 C.F.R. §
20.704(b) (2009). After the hearing, or if
the Veteran fails to report for the
scheduled hearing or withdraws his hearing
request, the claims file should be returned
to the Board in accordance with current
appellate procedures.
The purpose of this REMAND is to afford due process; it is not
the Board's intent to imply whether the benefits requested should
be granted or denied. The appellant need take no action until
otherwise notified, but he may furnish additional evidence and/or
argument during the appropriate time frame. See Kutscherousky v.
West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104,
108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v.
Derwinski, 3 Vet. App. 129, 141 (1992).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).